Citation Nr: 9810605
Decision Date: 04/06/98 Archive Date: 04/23/98
DOCKET NO. 95-21 756 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUES
1. Entitlement to an increased evaluation for a chronic
lumbosacral strain, with L4-L5 disc disease, currently
evaluated as 20 percent disabling.
2. Entitlement to an increased (compensable) evaluation for
degenerative joint disease of the right ankle.
WITNESSES AT HEARING ON APPEAL
Appellant and Major [redacted]
ATTORNEY FOR THE BOARD
Christopher P. Kissel, Counsel
INTRODUCTION
The appellant served on active duty from August 1971 to
October 1993.
This case comes before the Board of Veterans’ Appeals (the
Board) on appeal from a June 1994 rating decision of the
Baltimore, Maryland, Department of Veterans Affairs (VA)
Regional Office (RO).
A hearing was held on April 28, 1997 before the undersigned
Member of the Board and a transcript of the hearing is of
record. In June 1997, the Board denied service connection
for orthopedic pathology of the shoulders, knees, and left
ankle, as well as for pathology related to the appellant’s
complaints of chest pain. The issues listed on the title
page of this decision were remanded by the Board for further
development. The case is now back before the Board for
further appellate review of these issues following completion
of the requested development.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that his service-
connected low back and right ankle disabilities are more
disabling than currently evaluated. He has testified on
appeal that his back problems impair his daily functioning
with respect to the way he walks, runs, and sleeps. He is
presently employed as a Junior ROTC drill instructor and he
and his supervisor, Major [redacted], have testified that he
experiences episodes of low back pain that require him to
take breaks from drill exercises and occasionally take sick
leave to recuperate. With respect to his right ankle, the
appellant has testified that he frequently experiences pain
and swelling in his right ankle after physical exercise.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a preponderance of the
evidence is against the appellant’s claim seeking increased
compensation benefits for his service-connected low back and
right ankle disabilities.
FINDINGS OF FACT
1. The veteran’s chronic lumbosacral strain with L4-L5 disc
disease is not manifested by listing of the whole spine to
the opposite side, a positive Goldthwaite’s sign, a marked
limitation of forward bending in a standing position, or a
loss of lateral motion with osteo-arthritic changes.
2. The veteran’s degenerative joint disease of the right
ankle is not manifested by a moderate limitation of motion,
or by objectively painful motion with radiological evidence
of arthritis.
3. The evidence in this case does not reflect that the
appellant has required frequent hospitalizations for his
service-connected low back or right ankle disabilities in the
years after service. Also, since the appellant is presently
employed and has testified that he has not missed significant
time in the past due to illness, it is not currently shown
that the aforementioned service-connected disabilities,
either singly or jointly, cause marked interference with
employment.
CONCLUSIONS OF LAW
1. The appellant’s low back disability is no more than 20
percent disabling pursuant to the schedular criteria. 38
U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.40,
4.45, 4.71a, Diagnostic Code 5295 (1997).
2. The evidence does not warrant the assignment of a
compensable rating for the appellant’s right ankle
disability. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991);
38 C.F.R. §§ 4.40, 4.45, 4.71, 4.71a, Diagnostic Code 5271
(1997).
3. Application of extraschedular provisions is not warranted
in this case. 38 C.F.R. § 3.321(b) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
Service connection for the low back and right ankle
disabilities at issue on appeal was granted by rating
decision in April 1995, at which time the RO determined, sua
sponte, that it had committed clear and unmistakable error
for failing to grant service connection for these
disabilities in its June 1994 rating decision. Accordingly,
the RO assigned a 10 percent rating under Diagnostic Code
5295 for the low back disability (chronic strain, lumbar
spine with disc disease L4-5) and a noncompensable rating
under Diagnostic Codes 5003, 5271 for the right ankle
disability (chronic strain, right ankle with degenerative
joint disease). Evidence reviewed by the RO at this time
included the appellant’s service medical records and the
report of a VA orthopedic-joints compensation examination
conducted in January 1994.
The appellant’s service medical records indicated that he was
treated on a number of occasions for strain injuries to his
low back and right ankle. The report of his August 1993
retirement physical examination reflected diagnoses of
recurrent low back pain and degenerative joint disease of the
right ankle.
On the VA examination of January 1994, the appellant related
a history of recurring back problems secondary to a sports
injury (basketball) sustained in 1986 and problems with
multiple joints, including his right ankle, related to “all
the exercises that he had to go through while in the Army.”
Objectively, he was able to walk unassisted without a limp
and he could walk on his toes and heels. Examination of his
right ankle showed no abnormalities; he had full range of
motion with no pain on movement, but the veteran stated that
he would experience pain just below the lateral malleolus
with running. There was no palpable spur, swelling, or heat
in the area of his right ankle on examination. Examination
of his lumbar spine showed a normal lumbar lordosis, and the
posterior processes showed normal alignment from the lateral
as well as the posterior view. The appellant complained of
tenderness over the paraspinal muscles and also over the
posterior processes of the spine, but the examiner saw no
visible or palpable muscle spasm. On range of motion, he
could forward flex to 90 degrees, and bend back to either
side to 30 degrees. On the basis of these findings, the
examiner diagnosed a history of strain of the lumbar spine
and right ankle.
X-rays of his lumbar spine taken in connection with the
January 1994 examination showed some narrowing at the L4-5
intervertebral disc space; otherwise, the remaining disc
spaces were preserved; the vertebrae were normal in size,
configuration, and alignment; the spines, pedicles, lamina,
and transverse processes were intact; and, there was no
radiographic evidence of remote or recent compression. X-
rays of the right ankle showed no evidence of significant
bone, joint or soft tissue abnormality, but he had some mild
degenerative changes relative to his age. The radiographic
impression was a negative study of the right ankle.
During the pendency of the appeal, the RO had the appellant’s
low back disability reexamined in March 1996. At that time,
he complained of localized low back pain that limited his
daily activities and required anti-inflammatory medication,
analgesic cream, and physical therapy, all of which served to
partially abate his symptoms. Despite these treatment
modalities, he reportedly continued to suffer from temporary
morning stiffness and “Gell phenomenon.” On examination,
the appellant was observed to be in mild distress because of
low back discomfort. Objectively, he had some mild
tenderness over the lumbar spine, however, there was no
evidence of postural abnormalities or fixed deformities of
the lumbar spine and no evidence of paraspinal muscle spasm.
Range of motion testing revealed some decreased forward
flexion (up to 30 degrees of full motion), but backward
extension and lateral rotation and flexion motions were
within normal limits. The neurological examination revealed
no abnormalities. On the basis of these findings, he was
diagnosed with lumbosacral strain and lumbar disc disease,
L4-L5. The examiner recommended to the appellant that he
continue his treatment plan involving anti-inflammatory
medication, analgesics, muscle relaxants, and strengthening
exercises of his lower back musculature. The appellant was
also advised to seek follow-up care for his problems at the
VA Medical Center.
On the basis of the March 1996 VA examination, the RO denied
an increased rating above 10 percent for the appellant’s low
back disability by rating decision in June 1996.
In June 1996, the RO received a letter from the appellant in
which he stated his disagreement with the 10 percent rating
assigned to his low back disability. He argued that the
March 1996 examination was inadequate for rating purposes
because the examiner only spent a few minutes with him. He
added that notwithstanding the examination findings, he was
frequently in a great deal of pain due to muscle spasms. In
support of arguments, he submitted selected copies of his
service medical records. In response, the RO wrote the
appellant in July 1996 informing him that his service medical
records were not dispositive to his claim as more recent
medical evidence was already of record. He was advised to
inform the RO of any recent treatment for his low back and
right ankle disabilities. No response to this letter was
received by the RO.
As noted previously, the appellant appeared at a hearing
before the undersigned Member of the Board in April 1997.
The appellant’s testimony regarding his low back and right
ankle disabilities is summarized in the CONTENTIONS section
of this decision. Additionally, the Board notes that the
appellant testified at this hearing regarding recent
treatment for his disabilities at the Fort Meade hospital in
association with the Johns Hopkins University Health and
Maintenance Organization. In its remand decision of June
1997, the Board instructed the RO to again request the
assistance of the appellant in securing any available medical
records showing recent treatment for his low back and right
ankle disabilities. However, notwithstanding the RO’s
attempt to secure such records with the appellant’s
assistance by letter dated in July 1997, a response to this
letter or a request for further assistance/clarification from
him has not been received to date.
The Board also ordered on remand a new VA examination of his
low back and right ankle disabilities, and this examination
was completed in October 1997. The claims file was reviewed
in connection with this study, prompting the following
remarks by the examining VA physician:
In taking the history, I think this man
has a true disc disease syndrome. He is
6’2”. He is weighing now approximately
180 pounds. He stays in pretty good
trim, and he has to do a fair amount of
vigorous activity training the ROTC
students in high school. Indeed, he is
wondering whether he will be able to keep
up this activity. He has intermittent
attacks of pain. At that time, when the
low back pain hits him, he just cannot
walk, and he cannot straighten up. This
occurs approximately two times a month.
Getting out of bed in the morning can be
excruciating. Intermittently, he also
gets radiating pain down his right leg.
This does not occur with every attack of
pain. He also feels a little numbness in
the lateral side of his right thigh.
This does not seem to be related to the
complaints in his ankle.
Objectively, on range of motion testing of his lumbar spine,
the appellant could only forward flex to 80 degrees and
lateral deviation was to 15 degrees on the left and 20
degrees on the right with some reported discomfort,
particularly with rotation to the left. Lateral rotation was
25 degrees to both sides. Backward extension was to 15
degrees. Additionally, he had significant right paraspinal
muscle spasm as compared to the left. That area was well
hypertrophied and tender to palpation. Deep tendon reflexes
were 1 to 2+ on the left. The examiner could not get a deep
tendon reflex at the knee or right ankle. Straight leg
testing was positive on the right, negative on the left.
Examination of the right ankle was normal; the examiner
stated “[t]here was no evidence of any problems.” The
appellant pointed out that he felt pain in the heel and on
the lateral malleolus, but there was no evidence of any
edema. The right ankle appeared stable and range of motion
was essentially normal with dorsiflexion to 20 degrees and
plantar flexion to 40 degrees. Inversion was to 30 degrees
and eversion was to 20 degrees of full motion.
Based on the aforementioned findings, the examiner’s
diagnostic impression was degenerative disc disease of the
lumbar spine and a chronically sprained right ankle, pending
x-ray studies. X-rays of the lumbar spine were reported as
unchanged compared to those taken in January 1994, cited
above, and x-rays of the right ankle showed intact bone and
joint structures with no evidence of arthritic change. There
was in the oblique projection, however, evidence of a small
exostosis (benign bony growth) extending off the superior
limits of the talus.
On the basis of above, the RO issued a rating decision in
October 1997 granting an increased rating for the appellant’s
low back disability to 20 percent, but denying a compensable
or higher rating for his right ankle disability. In February
1998, the RO returned the claims file to the Board for
further appellate review of these issues. No additional
evidence or argument has been submitted by the appellant.
II. Analysis
The appellant’s claims are well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet. App. 78
(1990). This finding is based on the appellant’s contentions
regarding the increased severity of his service-connected low
back and right ankle disabilities. See Jones v. Brown, 7
Vet. App. 134 (1994); Proscelle v. Derwinski, 2 Vet. App. 629
(1992). Moreover, although the appellant was awarded an
increased evaluation for his low back disability during the
pendency of the appeal, this claim remains in appellate
status because he has not withdrawn it and less than the
maximum available benefits have been awarded. See AB v.
Brown, 6 Vet. App. 35 (1993).
A merits-based review of the appellant’s claim requires the
Board to provide a written statement of the reasons or bases
for its findings and conclusions on material issues of fact
and law. 38 U.S.C.A. § 7104(d)(1) (West 1991). The
statement must be adequate to enable a claimant to understand
the precise basis for the Board’s decision, as well as to
facilitate review by the United States Court of Veterans
Appeals (the Court). See Simon v. Derwinski, 2 Vet. App.
621, 622 (1992); Masors v. Derwinski, 2 Vet. App. 181, 188
(1992). To comply with this requirement, the Board must
analyze the credibility and probative value of the evidence,
account for evidence which it finds to be persuasive or
unpersuasive, and provide reasons for rejecting any evidence
favorable to the appellant. See Caluza v. Brown, 7 Vet. App.
498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir.
1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40
(1994). Moreover, as the Court has pointed out, the Board
may not base a decision on its own unsubstantiated medical
conclusions but, rather, may reach a medical conclusion only
on the basis of independent medical evidence in the record or
adequate quotation from recognized medical treatises. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Moreover, the Board has the duty to assess the credibility
and weight to be given to the evidence. See Madden v. Gober,
125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein.
Once the evidence is assembled, the Secretary is responsible
for determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. See also Alemany v. Brown, 9 Vet. App. 518, 519
(1996).
Further, with respect to the rating of musculoskeletal joint
disabilities (as in this case), the Court has held that the
Board must consider the application of 38 C.F.R. § 4.40
(1997) regarding functional loss due to joint pain on use or
during flare-ups, and 38 C.F.R. § 4.45 (1997) regarding
weakness, fatigability, incoordination, or pain on movement
of a joint. See DeLuca v. Brown, 8 Vet. App. 202, 203
(1995). (Title 38, Code of Federal Regulations, Sections
4.40 and 4.45 make clear that pain must be considered capable
of producing compensable disability of the joints) and
Quarles v. Derwinski, 3 Vet. App. 129, 139-40 (1992) (Board’s
failure to consider section 4.40 was improper when that
regulation had been made potentially applicable through
assertions and issues raised in record). Accordingly, the
Court’s holding in DeLuca requires the Board to consider
whether an increased schedular rating for the appellant’s low
back and right ankle disabilities may be in order on three
independent bases: (1) pursuant to the relevant schedular
criteria, i.e., notwithstanding the etiology or extent of his
pain complaints, if the medical examination test results
reflect findings which support higher ratings pursuant to the
delineated schedular criteria; (2) pursuant to 38 C.F.R.
§ 4.40 on the basis of additional functional loss due
specifically to complaints of pain on use or during flare-
ups; and (3) pursuant to 38 C.F.R. § 4.45 if there is
additional functional loss due specifically to any weakened
movement, excess fatigability, or incoordination.
After review of all material issues of fact and law, the
Board concludes that a preponderance of the evidence found
probative to these claims is against entitlement to more than
a 20 percent schedular evaluation for the appellant’s low
back disability and is against entitlement to a compensable
or higher rating for his right ankle disability. In support
this decision, the Board will address in sequential order the
criteria listed above in the preceding paragraph.
Relevant Schedular Criteria, 38 C.F.R. § 4.71a, Diagnostic
Codes 5271 and 5295
On the basis of the facts found, the appellant’s low back
disability has been assigned a 20 percent rating under
Diagnostic Code 5295 for lumbosacral strain with muscle spasm
on extreme forward bending and loss of lateral spine motion,
unilaterally, in a standing position. The next higher (and
maximum) schedular rating under Diagnostic Code 5295, 40
percent, may be assigned for severe lumbosacral strain
manifested by listing of the whole spine to the opposite
side, positive Goldthwaite’s sign, marked limitation of
forward bending in a standing position, loss of lateral
motion with osteo-arthritic changes, or narrowing or
irregularity of joint spaces, or some of these symptoms with
abnormal mobility on forced motion. The appellant’s right
ankle disability is rated noncompensably disabling under
Diagnostic Code 5271 for limited range of motion of the ankle
that does not meet the requirements for a compensable
evaluation. 38 C.F.R. § 4.31 (1997). A compensable rating
under Diagnostic Code 5271 requires evidence of moderate
limitation of motion of the ankle. The next higher (and
maximum) schedular rating, 20 percent, may be assigned for
marked limitation of motion of the ankle.
The evaluation of a service-connected disability requires a
review of a veteran’s medical history with regard to that
disorder. 38 C.F.R. § 4.2 (1997). However, the primary
concern in a claim for an increased evaluation is the present
level of disability. See Francisco v. Brown, 7 Vet. App. 55
(1994). In Francisco, the Court stated that although a
rating specialist was directed to review the recorded history
of a disability in order to make an accurate evaluation, the
regulations did not give past medical reports precedence over
current findings. Id. at 58. Hence, for purposes of
application of the schedular criteria, the Board assigns the
greater weight of probative value to the medical evidence, in
particular, the recent VA examination conducted in October
1997.
As detailed above, clinical findings on this examination
revealed 80 degrees of forward bending range of motion; and
15-20 degrees of extension and lateral flexion. There was a
significant paraspinal muscle spasm with hypertrophy on the
right compared to the left, and a positive straight leg
raising sign. Examination of the right ankle was objectively
negative notwithstanding the appellant’s complaints of pain
in the heel and on the lateral malleolus. He had no real
deficits of range of motion of the right ankle, there was no
edema, and the ankle appeared stable. X-rays of his lumbar
spine were unchanged since a January 1994 study which showed
some narrowing of the L4-5 disc space. X-rays of the right
ankle showed no evidence of arthritic changes, although he
did have a small bony growth extending off the superior
limits of the talus. With respect to the back, the only
finding that reflects a 40 percent rating under Code 5295 is
the narrowing of the L4-L5 joint space. There was no
evidence on the 1997 examination of the other symptoms to
support the higher rating. With respect to the right ankle,
Code 5271 requires, at a minimum, some degree of limited
range of motion which as described above, was not evident at
the time of the 1997 examination. Accordingly, as pertinent
findings on this examination did not reflect a overall
disability picture corresponding to the above-cited criteria
for higher ratings under Diagnostic Codes 5271 and 5295,
there is no clinical evidence of increased ratable impairment
of the low back or right ankle as contemplated by law and the
schedular criteria. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1
(1997); see also Tallman v. Brown, 7 Vet. App. 453, 464-65
(1995) (regulatory provisions entitled to deference if not in
conflict with statute).
Additional medical records in the claims file do not support
an increased rating for either disability pursuant to the
specific criteria listed under Diagnostic Codes 5271 and
5295. Clinical findings on the March 1996 VA examination for
his low back disability were significant only for mild
tenderness over the lumbar spine and decreased range of
motion to 30 degrees of full motion, or 65 degrees, on
forward bending. All other planes of movement were within
normal limits and there was no evidence of paraspinal muscle
spasm. Indeed, for purposes of the schedular criteria, the
findings on this examination are more benign than those noted
more recently, to wit, the absence of any muscle spasm on
this examination would not support even a 20 percent rating
under Diagnostic Code 5295. The January 1994 VA examination
is somewhat dated at this point, but similarly, the objective
clinical findings on this examination show not evidence of
ratable increased impairment for the low back and right
ankle. The appellant had only slight deficits of range of
motion on forward bending of his lumbar spine, and as
mentioned above, some narrowing of the L4-5 disc space on x-
ray study. He had no visible abnormalities or deficits of
range of motion of the right ankle. Moreover, he was able to
walk unassisted without a limp and he did not have pain
complaints with range of motion testing of his right ankle.
X-rays showed some mild degenerative changes relative to his
age, but there was no evidence of significant bone, joint or
soft tissue abnormality. The diagnostic impression was a
negative x-ray of the right ankle. While these older
findings show a gradual increasing severity of his low back
disability when comparing the examination results of 1994,
1996 and 1997, they are nevertheless not close to the
criteria needed to establish a 40 percent rating under
Diagnostic Code 5295. In short, there is no clinical
evidence in this case which reflects a degree of disability
in the low back that more closely represents the criteria for
a “severe” case of lumbosacral strain. 38 C.F.R. § 4.7
(1997). Regarding the right ankle, there is no medical
evidence whatever of ratable limitation of motion and hence,
a compensable or higher rating for this disability according
to the schedular criteria is not in order.
In support of his claim, the appellant relies principally on
copies of his service medical records. However, as the RO
duly informed him by letter in July 1996, these records are
not dispositive to the adjudication of his claims at this
time. His service medical records were important to the
establishment of service connection for the low back and
right ankle disabilities, but as to the current level of
disability, the aforementioned VA compensation examinations
provide a more recent clinical picture of his disabilities.
Francisco.
By reason of the above, the Board concludes that the
disability picture presented supports ratings that are no
higher than those currently assigned schedular evaluations
for the low back (20 percent) and right ankle (zero percent).
As mentioned above, 38 C.F.R. § 4.7 provides that a higher
disability rating will be assigned if the disability picture
more nearly approximates the criteria required for that
rating; otherwise, the lower rating will be assigned. A
higher rating under Diagnostic Code 5295 for the low back is
clearly not in order as the clinical findings of record do
not reflect a “severe” case of lumbosacral strain as
manifested by a number of the enunciated criteria (listing of
the whole spine to one side, positive Goldthwaite’s sign,
marked limitation of forward bending in a standing position,
loss of lateral motion with osteo-arthritic changes, or
narrowing or irregularity of joint spaces, or some of these
symptoms with abnormal mobility on forced motion). The fact
that these criteria are not listed as independent clauses,
i.e., by semicolon, makes clear that the low back disability
must reflect an overall general picture of these symptoms.
Tallman, 7 Vet. App. at 464-65. The appellant in this case
shows only a narrowing of the L4-5 joint space. No further
discussion of the schedular criteria under Diagnostic Code
5271 for the right ankle is required as the complete absence
of demonstrated ratable impairment for this disability as
shown by the medical record is dispositive.
38 C.F.R. §§ 4.40 and 4.45
The regulation for musculoskeletal system functional loss in
section 4.40 provides:
Disability of the musculoskeletal system
is primarily the inability, due to damage
or infection in parts of the system, to
perform the normal working movements of
the body with normal excursions,
strength, speed, coordination and
endurance. It is essential that the
examination on which ratings are based
adequately portray the anatomical damage,
and the functional loss, which respect to
all these elements. The functional loss
may be due to absence of part, or all, of
the necessary bones, joints and muscles,
or associated structures, or to
deformity, adhesions, defective
innervation, or other pathology, or it
may be due to pain, supported by adequate
pathology and evidenced by the visible
behavior of the claimant undertaking the
motion. Weakness is as important as
limitation of motion, and a part which
becomes painful on use must be regarded
as seriously disabled. A little used
part of the musculoskeletal system may be
expected to show evidence of disuse,
either through atrophy, the condition of
the skin, absence of normal callosity[,]
or the like.
38 C.F.R. § 4.40 (emphasis added).
Section 4.45 provides that factors of disability involving a
joint reside in reductions of its normal excursion of
movements in different planes of motion and therefore,
inquiry will be directed to such considerations as movement
abnormalities, weakened movement (due to muscle injury,
disease or injury of peripheral nerves, divided or lengthened
tendons, etc.); excess fatigability; and incoordination
(impaired ability to execute skilled movements smoothly). 38
C.F.R. § 4.45.
The appellant’s complaints of pain in his lumbar spine and
right ankle do not warrant increased ratings under 38 C.F.R.
§§ 4.40 and 4.45 because a preponderance of the medical
evidence does not substantiate additional range-of-motion loss
in these joints due to pain on use or during flare-ups, or due
to weakened movement, excess fatigability, or incoordination.
Consideration of these regulations for his right ankle may be
summarily dismissed as the recent clinical findings on the
October 1997 VA examination showed no evidence of limited
range of motion of this joint. Indeed, the examiner commented
that “there was no evidence of any problems” affecting the
right ankle. The balance of the medical evidence is similarly
negative for any evidence of additional functional loss
affecting the right ankle. Now it is true that the appellant
suffers from intermittent attacks of low back pain manifested
by muscle spasms. These attacks prevent him from walking,
climbing stairs or otherwise participating in his training
activities with his ROTC students. He also has frequent
morning stiffness. However, he experiences these attacks only
two times per month and despite his disability, he remains
gainfully employed as an ROTC instructor, a job that is no
doubt demanding physically. He stated at the time of his 1997
VA examination that he wondered if he could continue in this
line of work, but it is not shown that he has left this job or
is unable to satisfactorily perform in this capacity due to
his low back disability or due to any other problem.
Accordingly, given the medical findings of record which do not
reflect range of motion deficits that come close to the
requirements for a 40 percent rating under Diagnostic Code
5295, the Board finds that a preponderance of the evidence is
against a finding of “additional functional loss” due to
limitation of motion in his lumbar spine that is evidently
caused by his pain complaints. Consequently, the benefit-of-
the-doubt doctrine under 38 U.S.C.A. § 5107(b) is not for
application in this case as the evidence for and against the
claim is clearly not in equipoise. Cf. Williams (Willie) v.
Brown, 4 Vet. App. 270, 273-74 (1993) (citing Gilbert, 1 Vet.
App. at 54, the Court found “significant” evidence in
support of veteran’s claim). In this case, for the reasons
stated, the Board finds that a preponderance of the evidence
to be against the claim. Gilbert; Alemany.
Moreover, although the Board is required to consider the
effect of pain when making a rating determination, which has
been done in this case, it is important to emphasize that the
rating schedule does not provide a separate rating for pain.
See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1996).
In view of the above, the Board concludes that increased
disability ratings for the low back and right ankle
disabilities are not warranted, based on the application of
38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5271, 5295.
III. Additional Considerations
Rating under other Diagnostic Codes
The Board has considered the potential application of the
various provisions of 38 C.F.R. Parts 3 and 4, whether or not
they were raised by the appellant. Schafrath. However, for
the reasons discussed above, the Board concludes that the
currently assigned ratings for the appellant’s low back and
right ankle disabilities adequately reflect the level of
impairment pursuant to the schedular criteria.
In particular, the Board has given consideration to
evaluating these disabilities under different Diagnostic
Codes. The Board notes that the assignment of a particular
Diagnostic Code is “completely dependent on the facts of a
particular case.” See Butts v. Brown, 5 Vet. App. 532, 538
(1993) (en banc). One Diagnostic Code may be more
appropriate than another based on such factors as an
individual’s relevant medical history, the current diagnosis
and demonstrated symptomatology. Any change in a Diagnostic
Code by a VA adjudicator must be specifically explained. See
Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). However,
in the instant case, the Board finds that Diagnostic Codes
5271 for the right ankle and 5295 for the low back are the
most appropriate schedular criteria for the evaluation of the
appellant’s disabilities. See Tedeschi v. Brown, 7 Vet. App.
411, 414 (1995).
Since there is no currently diagnosed clinical evidence of
ankylosis affecting the right ankle or lumbar spine or other
ratably increased musculoskeletal impairment, the appellant’s
disabilities are not entitled to a higher rating pursuant to
Diagnostic Codes 5270 (ankylosis of the ankle), and 5272-5274
(ankylosis of the tarsal joint; malunion of the Os calcis or
astragalus; or residuals of an astragalectomy), with respect
to the right ankle, or, with respect to the low back,
pursuant to Diagnostic Codes 5285 (residuals of fracture of
the vertebra, 5286 (complete bony fixation of the spine),
5289 (favorable or unfavorable ankylosis of the lumbar
spine), 5292 (severe limitation of motion of the lumbar
spine), or 5293 (severe or pronounced attacks of
intervertebral disc syndrome as manifested by attacks of
sciatic neuropathy with characteristic neurological findings
appropriate to the site of the diseased disc). He has never
been diagnosed with ankylosis of right ankle or lumbar spine,
x-rays of these joints do not show ratable deformities, and
neurologically speaking, the findings on the above-cited VA
examinations of 1994, 1996 and 1997 did not reflect that the
low back disability involved related sciatic neuropathy. On
the 1997 examination, he complained of occasional radiating
pain into his right leg, but he stated that these symptoms
did not occur with every attack of low back pain. Moreover,
he has not been diagnosed with intervertebral disc syndrome
and x-rays of record only show the aforementioned narrowing
of the L4-5 disc space with no other abnormalities.
Appellant’s contentions
The appellant’s contentions on appeal, personal statements,
and hearing testimony have been accorded due consideration;
however, the Board concludes that the recent medical findings
discussed above are more probative of the current level of
disability. See Francisco, 7 Vet. App. at 58.
It should be emphasized that the diagnoses and clinical
findings rendered on the recent 1997 VA examination are
consistent with the appellant’s medical history, described in
detail above, and are essentially uncontradicted by any other
recent medical evidence of record. Neither the appellant nor
his supervisor (Major [redacted]) who testified on his behalf
claim or are shown to be qualified to render a medical
diagnosis or opinion. Hence, their views as to the etiology
of his pain complaints and/or the extent of functional
impairment caused by the low back and right ankle
disabilities are specifically outweighed by the medical
evidence of record cited above. See Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992) (lay assertions will not support
a finding on questions requiring medical expertise or
knowledge).
It is also noted that the appellant disagreed with the
medical findings reported on the March 1996 VA examination.
He essentially argued that the examination was inadequate for
rating purposes because the examiner failed to adequately
address
the level of functional impairment caused by his low back
disability. However, since the reported findings on this
examination speak for themselves and since it is not
demonstrated that the examination was in some way incorrectly
prepared or failed to address the clinical significance of
his back complaints, the Board finds that additional
development by way of another medical examination would be
redundant and unnecessary, especially in view of the fact
that his disability was more recently evaluated in October
1997 by another VA physician. Moreover, the Board notes that
the mere fact that the medical findings entered on
examination were adverse to the appellant is not a sufficient
basis to warrant additional development. In this regard, as
stated above, in the absence of other corroborating evidence,
the appellant is not competent to proffer an opinion
addressing the clinical adequacy of a medical examination.
Espiritu, 2 Vet. App. at 494-95. Consequently, it is not
shown that additional development by way of a new medical
examination is required.
The Board further observes that the RO has, on its own
initiative and pursuant to remand instructions of the Board,
invited the appellant to submit additional medical evidence
in support of his claim or otherwise, notify VA of the
availability of additional treatment records. To date, he
has not responded to these inquiries, and thus, the Board
finds that he has been accorded ample opportunity to present
competent medical evidence in his claims. Accordingly, the
Board finds that VA has no outstanding duty to inform the
appellant of the necessity to submit certain evidence to
complete his application for VA benefits. 38 U.S.C.A.
§ 5103(a) (West 1991). In this respect, the Board is
satisfied that the obligation imposed by section 5103(a) has
been satisfied.
Finally, although the recent VA examination report of 1997
did not specifically discuss his pain symptoms in light of
any employment impairment, an analysis of this issue is
essentially moot in light of the fact that the appellant is
shown by the record evidence to be currently gainfully
employed in a physically demanding job (ROTC instructor) with
no evidence of significant time lost to his service-connected
low back and right ankle disabilities. Thus, as it is not
shown by the objective medical evidence that the appellant
has any increased ratable impairment associated with these
disabilities, further medical review to address the degree of
employment impairment caused by his pain complaints would be
redundant and unnecessary as well. Cf. Schafrath, 1 Vet.
App. at 595 (in a case where the veteran was currently
employed as a carpenter notwithstanding an elbow disability,
VA examination failed to consider disability ‘from point of
view of the veteran working or seeking work’).
IV. Extraschedular Consideration
It is noted that the RO did not consider referral of these
issues for extraschedular consideration pursuant to 38 C.F.R.
§ 3.321(b) (1997). Nevertheless, the Board does not find
that a remand is in order with respect to extraschedular
consideration as it has not been claimed by the appellant or
inferred by his contentions, and it does not appear from
review of the medical evidence, that referral for
consideration of an extraschedular rating is indicated. In
Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that
the Board does not have jurisdiction to assign an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance. However, the Board is obligated to seek out
all issues that are reasonably raised from a liberal reading
of documents or testimony of record and to identify all
potential theories of entitlement to a benefit under the law
and regulations. In Bagwell v. Brown, 9 Vet. App. 337
(1996), the Court clarified that it did not read the
regulation as precluding the Board from affirming an RO
conclusion that a claim does not meet the criteria for
submission pursuant to 38 C.F.R. § 3.321(b)(1) or from
reaching such a conclusion on its own. Moreover, the Court
did not find the Board’s denial of an extraschedular rating
in the first instance prejudicial to the appellant, as the
question of an extraschedular rating is a component of the
appellant’s claim and the appellant had full opportunity to
present the increased rating claim before the RO. Bagwell, 9
Vet. App. at 339. Consequently, the Board will consider
whether this case warrants the assignment of an
extraschedular rating.
In exceptional cases where schedular evaluations are found to
be inadequate, the RO may refer a claim to the Chief Benefits
Director or the Director, Compensation and Pension Service,
for consideration of “an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities.” 38 C.F.R. § 3.321(b)(1) (1997). “The
governing norm in these exceptional cases is: A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards.” Id. In this regard, the schedular evaluations
in this case are not inadequate. An increased rating is
provided for certain manifestations of the service-connected
low back and right ankle disabilities, but the medical
evidence reflects that those manifestations are not present
in this case.
Moreover, the Board finds no evidence of an exceptional
disability picture. It is not shown by the evidence that the
appellant has required hospitalization in the remote or
recent past for either his low back or right ankle
disabilities. Thus, in the absence of any evidence which
reflects that these disabilities are exceptional or unusual
such that the regular schedular criteria are inadequate to
rate them, the RO's failure to consider or to document its
consideration of this section was not prejudicial to the
appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Finally, in reaching these decisions the Board considered the
doctrine of reasonable doubt, however, as the preponderance
of the evidence is against the appellant’s claims, the
doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
An increased rating above 20 percent for the appellant’s low
back disability is denied. A compensable or higher rating
for the appellant’s right ankle disability is denied.
Derek R. Brown
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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